Harlem 133 Owner LLC v. Jimenez

The following e-filed documents, listed by NYSCEF document number (Motion 003) 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 201 were read on this motion to/for STAY. The following e-filed documents, listed by NYSCEF document number (Motion 004) 195, 196, 197, 198, 199, 200, 202 were read on this motion to/for STAY. DECISION + ORDER ON MOTION Upon the foregoing documents, it is In motion sequence number 003, defendants Dwayne Seifforth, Tonia Vail, Blanca Molinuevo, Madeline Burdier, Debbie Lima, Wismide Louis, and Georgette Hyman move, pursuant to CPLR 2201, RPAPL §§749(3) and 753 and the court’s inherent authority, to stay the ejectment, eviction, and execution of the judgment against defendants. Prior to the return date of this OSC, Vail and Mollinedo moved out of the premises rendering the motion moot as to those defendants. In motion sequence number 004, defendant Jennifer Avila also moves to stay the ejectment, eviction, and execution of the judgment against her. According to counsels for plaintiff and Avila, motion 004 was resolved prior to argument on the OSC. (NYSCEF ___ , tr ___ .)¹ The background of this case is set forth in the court’s prior decision granting plaintiff’s motion for a default judgment² against the moving defendants, among others. (NYSCEF 164, Decision and Order [Motion Seq. No. 001].) The court stayed the default judgment based on CPLR 2201 for the purpose of providing defendants time to search for new housing. (Id.) This is defendants’ second request for a stay but on a different legal theory. This tragic case is described in Mihir Zaveri’s article They Were Promised an End to Homelessness. Now They Face Eviction, NY Times, Dec. 30, 2022, available at https://www.nytimes.com/2022/12/30/nyregion/homeless-harlem-vouchers.html (last accessed March 21, 2023). During the height of COVID, defendants were lured by Levi Balkany from Department of Homeless Services (DHS) shelters into housing at 308-310 West 133rd Street, New York, New York. However, the March 2019 loan agreement for $26 million to renovate the building barred Balkany from leasing the units and certainly not while the building was under construction and uninsured for occupancy. (See Index No. 652300/2020, Harlem 133 Lender, LLC v. W133 Owner, LLC and Levi Balkany [Sup Ct, NY County], NYSCEF 2, Loan Agreement §§5.1.17[a], 5.1.24, 5.1.33, 5.2.3.) Moreover, based on the loan agreement, this court directed Balkany not to lease the apartments. (See Index No. 652300/2020, Harlem 133 Lender, LLC v. W133 Owner, LLC and Levi Balkany [Sup Ct, NY County], NYSCEF 35, Order to Show Cause with TRO.) DHS negotiated leases for defendants with Balkany using resources from Housing Resources Administration (HRA). (NYSCEF 175, Lima aff 3; NYSCEF 176, Seifforth aff 3; NYSCEF 177, Hyman aff 3; NYSCEF 178, Burdier aff 3; NYSCEF 179, Louis aff 3.) Apparently, the City failed to investigate Balkany’s authority, or the lack thereof, to lease the apartments to defendants. Except for the five remaining defendants here, 26³ other families residing at the property have relocated, some with the help of plaintiff’s broker Staci Reed. (NYSCEF __ ,⁴ Staci Reed aff 4.) The court confirmed on the record that Reed has been and continues to be available to help defendants search for apartments. This is an ejectment action where defendants never had valid leases. Defendants do not seek to vacate their defaults.⁵ Rather, defendants simply seek more time until they find suitable housing. Defendants were served by the New York County Sheriff with five-day notices dated February 15, 2023. (NYSCEF 174, Alvarez aff pursuant to CPLR 2217[b] 7.)⁶ Defendants assert that City agencies HRA, SUS,⁷ HomeBase or CityFHEPS have delayed defendants’ relocations. In New York City, the onerous process to find housing using vouchers begins with obtaining the “housing subsidy vouchers, then find a landlord willing to rent an apartment to them with their voucher, then receive agency approval for that apartment after an inspection is done, and then seek assistance with their physical relocation.” (NYSCEF 201, Alvarez reply aff 18.)⁸ Defendants assert that they may risk losing their housing subsidies if they are evicted prior to moving into new apartments. (NYSCEF 174, Alvarez aff 28.) The Public Emergency Unit of the Mayor’s Office is now assisting Louis, Seifforth, Lima, and Burdier in their housing search.⁹ (NYSCEF 201, Alvarez reply aff 11.) Madeline Burdier has a Section 8 voucher. (NYSCEF 178, Burdier aff 2.) She spoke with SUS in September 2021 and provided requested documents. (Id. 5.) “Months later”¹⁰ a different SUS caseworker requested the identical documents. (Id.) In September 2022, SUS directed Burdier to speak to a NYCHA caseworker who helped her complete a Section 8 application. (Id.) Burdier asserts discrimination by brokers but fails to state whether she has requested assistance from plaintiff’s broker Reed who has successfully assisted other families in the building. (Id. 10.) Burdier received a transfer voucher on December 10, 2022 which allows her to keep her subsidy and demonstrate to prospective landlords that she can pay the rent. (Id. 4.) Georgette Hyman has a Section 8 voucher and has identified an apartment. (NYSCEF 177, Hyman aff 2.) However, Hyman does not state when she obtained the voucher or when she began her housing search. She has been represented by Legal Aid in this action since June 9, 2022. (NYSCEF Case Detail.) On the record on March 6, 2023, plaintiff agreed to pay Hyman’s reasonable moving expenses. (NYSCEF __ , tr ___.)¹¹ Debbie Lima received housing assistance approval on February 10, 2023. (NYSCEF 174, Alvarez aff 27.) Lima asks for more time since she has not been able to obtain a shopping letter from HRA. (NYSCEF 175, Lima aff 2.) Lima states that she initially contacted HRA and requested assistance in August 2022. (Id. 5.) After Legal Aid’s January 2023 intervention,¹² she was assigned a caseworker. (Id.) She has been represented by Legal Aid in this action since June 9, 2022.¹³ (NYSCEF Case Detail.) Despite not having a letter, Lima has been inspecting apartments. (Id. 7.) However, it is unstated when her search commenced. (Id.) Wismide Louis moved into the premises with the assistance of the City FHEPS program for which she remains eligible. (NYSCEF 179, Louis aff